Should I Have More than One Will?

This depends.

In some instances, it may be preferable to have one Will, however where there are multi-jurisdictional assets, it may be advisable to have an international Will. Navigating the legal ramifications of the different jurisdictions can be challenging, and it is therefore critical that you choose an Estate planner who has the necessary skillset to provide holistic advice.

Probate

In many instances, if assets are above a determined threshold, representatives will be required to be appointed in the jurisdiction where the asset is located to obtain probate, finalise taxes and obtain the documents necessary to transfer the assets to your heirs. This may result in delays in finalising your South African estate and further carries with it additional costs that must be considered in your estate plan, especially if the offshore asset is illiquid, such as a holiday house.

Marital Regimes and Forced Heirship

In some countries, for example, Italy, assets are seen as being owned jointly by spouses and hence may not be free to dispose of in terms of your Will.

Other countries, such as Portugal and France, have forced heirship laws that apply to citizens and residents. These laws prescribe the manner in how a portion of your estate will devolve, and an individual will not have freedom of testation in this regard. This may result in unintended consequences as your wishes contained in your Wills may be ignored in favour of the overriding law of the jurisdiction. 

Trusts

Many South African Wills nominate a Trust as a beneficiary. This will cause potential problems in certain countries such as France, where trusts are not recognised in the same way as South Africa.

Additional Inheritance Tax

Many South Africans are unaware of the fact that they may, (depending on the jurisdiction of the asset), have to pay an additional 160% international inheritance tax, over and above the South African estate duty payable in South Africa. Careful planning can mitigate and, in some cases, even eliminate this additional tax.

Conclusion

In some instances, an offshore Will can override certain country rules, but where this is not possible, it is important to carefully word your local Will in such a manner that it compensates or balances out any adverse implications. This will ensure that your ultimate intentions are met.

Complex and conflicting laws have the potential to significantly impact Estate planning, especially if they are not provided for. It is therefore critical that your estate planner is conversant in the legislation relating to the jurisdictions in which you are invested to assist you and your beneficiaries in navigating your multi-jurisdictional Estate.

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